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The Maharashtra Girni Kamgar Union Vs. Carona Sahu Co. Pvt. Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberO.O.C.J.W.P. No. 2630 1983
Judge
Reported in(1994)IIILLJ20Bom
ActsMaharashtra Recognitionof Trade Unions and Prevention of Unfair Labour Practices Act, 1971 - Sections 50 and 59; Industrial Disputes Act, 1947
AppellantThe Maharashtra Girni Kamgar Union
RespondentCarona Sahu Co. Pvt. Ltd. and ors.
DispositionPetition dismissed
Excerpt:
.....labour practices act, 1971 and industrial disputes act, 1947 - petitioner union contended that deputy commissioner of labour had no jurisdiction to decide legality of termination of service - section 59 bars proceedings before any authority under central act in respect of matter falling under act of 1971 - present matter falling under act of 1971 and petitioner entitled to file case to industrial court - industrial court can grant relief in complaint instituted by petitioner union - held, order of deputy commissioner need not be disturbed. - - the enquiry against the two workmen proceeded ex parte and both the workmen were found guilty of the charges levelled against them and were dismissed from employment by order dated september 5, 1981. the petitioner union, on behalf of the..........the conciliation officer, after hearing the parties, made a failure report and thereafter the deputy commissioner of labour (conciliation), bombay district, bombay, decided not to make reference under sub-section (5) of section 12 of the industrial disputes act (hereinafter referred to as the 'act') on the ground that by terminating the services of the workmen, the management has not acted vindictively or mala fide. the decision of the deputy commissioner was communicated to the petitioner union by letter, dated january 27, 1983 and the present petition was filed in this court on november 17, 1983 to challenge the legality of the action of the deputy commissioner of labour.3. the learned counsel appearing on behalf of the petitioner union submitted that it was not open for the.....
Judgment:

Pendse, J.

1. The respondent No. 1 Company is carrying on business at its factory premises situated at Caves Road, Jogeshuari. Bombay, and had employed about 2,800 employees. On April 15, 1981, the petitioner Union informed the Company that they are representing the majority workmen and should be recognised as representative Union and negotiations should be held by the employer only with the petitioner Union.

2. The Company chargesheeted two of its employees (1) Mansingh M. Bhonsle, and (2) Shaikh Nassirruddin on the ground that they had along with the other workmen surrounded Acting Foreman of Stitching Department on May 26, 1981 and threatened him with violence. Shri Ghosh, the Production Manager, came on the spot but he was also surrounded and questioned in a harsh and rude manner and threats of violence were given. The petitioner Union claims that the two workmen were active members of the Union. On June 3, 1981, the petitioner Union served notice of strike intimating that the workers will resort to strike from June 20, 1981. The Company in its turn issued notice of Lock-out on June 17, 1981 declaring its intention to close the factory from July 1, 1981. Indeed, the Company suspended the work from June 18, 1981 onwards. The enquiry against the two workmen proceeded ex parte and both the workmen were found guilty of the charges levelled against them and were dismissed from employment by order dated September 5, 1981. The petitioner Union, on behalf of the two workers, raised a demand for reinstatement on March 25, 1982 and the Company having not responded, approached the Conciliation Officer on April 15, 1982. The Conciliation Officer, after hearing the parties, made a failure report and thereafter the Deputy Commissioner of Labour (Conciliation), Bombay District, Bombay, decided not to make reference under Sub-section (5) of Section 12 of the Industrial Disputes Act (hereinafter referred to as the 'Act') on the ground that by terminating the services of the workmen, the management has not acted vindictively or mala fide. The decision of the Deputy Commissioner was communicated to the petitioner Union by letter, dated January 27, 1983 and the present petition was filed in this Court on November 17, 1983 to challenge the legality of the action of the Deputy Commissioner of Labour.

3. The learned counsel appearing on behalf of the petitioner Union submitted that it was not open for the Deputy Commissioner of Labour to adjudicate as to whether the termination of service was legal and valid or whether it was the result of the vindictiveness and mala fide. The learned counsel complained that the finding of the Deputy Commissioner of Labour that the workmen were given fair and reasonable opportunity to participate in the enquiry is incorrect. In any event, the Deputy Commissioner of Labour overlooked, says the learned counsel, the provisions of Section 11A of the Act which entitles the Labour Court to consider the quantum of punishment, even if the enquiry is legal and the finding that the workman is guilty of the charges is just. Shri Khambatta, learned counsel appearing on behalf of the Company, supported the conclusion of the Deputy Commissioner of Labour and urged that the remedy sought by the petitioner Union seeking reference in regard to the dispute about the dismissal of the two employees and their reinstatement was wholly inappropriate and not maintainable. The learned counsel urged that the provisions of Section 59 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as the 'M.R.T.U.P. Act') clearly bar the proceedings for reference as sought by the petitioner Union. The submission of Shri Khambatta is correct and deserves acceptance. Section 59 of the M.R.T.U.P. Act reads as under :

'If any proceedings in respect of any matter falling within the purview of this Act is instituted under this Act, then no proceeding shall at any time be entertained by any authority in respect of that matter under the Central Act or, as the case may be, the Bombay Act; and if any proceeding in respect of any matter within the purview of this Act is instituted under the Central Act, or as the case may be, the Bombay Act, then no proceeding shall at any time be entertained by the Industrial or Labour Court under this Act'.

4. The plain reading of this Section makes it clear that no proceedings can be entertained by any authority under the Central Act, or the Bombay Act, in respect of the matter falling within the purview of the M.R.T.U.P. Act and in respect of which the proceedings have already been instituted. As mentioned hereinabove, the two workmen were dismissed on September 5, 1981. On October 3, 1981, the petitioner Union filed Complaint ULP No. 521 of 1981 before the Industrial Court at Bombay complaining that the employer had committed unfair labour practice under items Nos. 1(a), 2, 4(a) and (L), and 6 of Schedule II and Items Nos. 5, 6 and 10 of Schedule IV of the M.R.T.U.P. Act. Item No. 1(a) of Schedule II refers to the unfair labour practice of threatening employees with discharge or dismissal if they join the Union. Item No. 4(i) of Schedule II refers to the practice of discharging office-bearers or active union members, on account of their union activities. In Paragraph 3.D. of the Complaint, the petitioner Union claims that from May 23, 1981, the Assistant Production Manager started harassing employees by arbitrary allotment of work, and by issuing unjustified and unwarranted show cause notices, charge-sheets and suspension orders. The list of employees who were victims of this alleged harassment was annexed to the complaint. In paragraph 3.C of the complaint, it was claimed that pursuant to the threats of dismissal, the services of three employees have been terminated without giving the employees concerned an opportunity to explain and without holding a fair and impartial enquiry as required by law. The names of these three employees are set out in Annexure B to the complaint and that includes the name of Mansing Bhonsle and Shaikh Nasir-rudin, the two employees on whose behalf the reference was sought from the Deputy Commissioner of Labour. Shri Khambatta submits that as the petitioner Union had already put in issue the matter about dismissal of the two employees by filing the complaint under M.R.T.U.P. Act, it is not permissible for the petitioner Union to seek and the Government to grant reference to the Labour Court under the Industrial Disputes Act to determine whether the workmen should be reinstated with full back wages. The learned counsel also pointed out that in the complaint filed by the petitioner Union under the M.R.T.U.P. Act, it is open for the Industrial Court in exercise of the powers under Section 30(1)(b) of the M.R.T.U.P. Act to direct the employer to take any affirmative action including reinstatement of the employees with full back wages. It was urged that in case, the petitioner Union is able to establish before the Industrial Court that the employer had indulged in unfair labour practice by dismissing the two employees, then the Industrial Court had ample jurisdiction to grant the relief of reinstatement with full back wages. The submission is that in view of the provisions of the M.R.T.U.P. Act, which is a self-contained Code, it is not permissible, and, indeed not necessary for the State Government to make reference to determine the identical question. In any judgment, the submission deserves acceptance and, therefore, the order passed by the Deputy Commissioner of Labour need not be disturbed. The two workmen dismissed from the employment can get relief in the complaint instituted by the petitioner Union and where the action of their dismissal has been specifically put in issue. In these circumstances, it is not necessary to disturb the order of the Deputy Commissioner of Labour and the petition must fail.

5. Accordingly, the rule is discharged but in the circumstances of the case, there will be no order as to costs.


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